In the run up to the UK General Election, councils and other public authorities can expect an increase in FOI requests. Political parties and their supporters, as well as the media, will use FOI to attempt to unearth information which may prove that that “the plan is working”, “the country needs change” or simply to score political points.
Whenever an election is called, ministers, civil servants and local government officials are restricted in terms of what they can say and do to ensure that they do not influence the election whilst carrying out their official duties. The pre-election period of sensitivity occurs in the weeks leading up to an election or referendum. In the past it was known as ‘purdah’.
Local authorities have to follow the statutory guidance (at all times) in the form of the Code of Recommended Practice on Local Authority Publicity (England).
Similar codes operate in Scotland and Wales. Guidance for civil servants says the rules apply once Parliament is official dissolved.
In the light of the above rules, it is easy to think that politically motivated FOI requests should be treated differently during this period or may be even not answered at all to avoid influencing electors. This is not so. In the words of the House of Commons Library Research Briefing, Pre-election period of sensitivity:
“Requests for factual information or freedom of information requests should be dealt with in accordance with the Freedom of Information Act (FOIA).”
There is no ICO guidance on FOI requests during an election period, but the ICO has issued a Decision Notice (in 2018) which makes the position clear. York Council was asked in an FOI request for information about unpaid business rate accounts. The Council refused the request, citing the exemption in Section 44 – Prohibitions on disclosure, saying disclosing the information “could affect public support for a particular party”, and suggesting the requester make the same request after the election. The ICO ruled that the prohibition on publication of politically sensitive information, in the Local Government Code, relates to material that is published by, or on behalf of, a local authority; information disclosed under FOI is not covered by this prohibition. The fact that the requester, in this case, was an active member of a political party, and the information related to an ongoing campaign around
non-domestic rates, was not relevant according to the ICO.
The Scottish Information Commissioner‘s guidance states that FOISA requests to public bodies in the run-up to an election, still have to be responded to promptly and within the statutory time period; responses should not be delayed due to an election.
Our FOI Exemptions workshop is ideal for FOI Officers who want to develop their knowledge of the exemptions and sharpen their Refusal Notice writing skills.
